Does the Equality Act of 2010 protect Ex-employees from victimisation?

The Equality Act 2010 contains measures that protect employees from victimisation for having made a complaint of unlawful discrimination, but does that protection extend to events that take place after the employment relationship has ended? In Rowstock Limited v Jessemey, the Court of Appeal has ruled that it does, even though the wording of the Act suggests the opposite.

Mr Jessemey was employed by Rowstock Limited as a car body repairer. In January 2011, one year after his 65th birthday, he was told that the company no longer wished to employ men over 65 and his employer dismissed him without carrying out the statutory retirement procedures that were in place at the time. On 8 February 2011, the company provided an employment agency, through which Mr Jessemey was seeking work, with a very poor reference for him.

The Employment Tribunal (ET) upheld Mr Jessemey's claims of unfair dismissal and unlawful discrimination on grounds of age and agreed that he had been given a poor reference because he had commenced proceedings against his employer. However, the ET decided that it had no jurisdiction to give any remedy for the victimisation because, although discrimination and harassment post-termination are specifically prohibited under the Equality Act, Section 108(7) appears expressly to disapply the concept of victimisation where the employment relationship has ended.

Mr Jessemey appealed against the ET's finding. He was supported in his appeal to the Employment Appeal Tribunal (EAT) by the Equality and Human Rights Commission since, if the ET's decision were correct, it would mean that no remedy for victimisation was available in any other post-relationship context to which the Act applies. However, although the EAT was satisfied that the effect of Section 108(7) was to 'produce a lacuna in the statutory scheme of protection from discrimination, harassment and victimisation which the UK is required by EU legislation to enact', the wording was nonetheless clear. The EAT held that it did not have the power to 'plug the gap' and refused to overturn the ET's original ruling.

Mr Jessemey took his case to the Court of Appeal.

In reaching its decision, the Court made several observations:

• Firstly, post-termination victimisation was unlawful at the time the Equality Act was drafted and there was no rational basis for withdrawing that protection;
• Secondly, the purpose of the Act was to restate existing protections against discrimination, clarifying and enhancing the law where necessary, and there was nothing to suggest that the Government intended a change in the law;
• Thirdly, the explanatory notes to the Act contain a reference to provisions, albeit unidentified, prohibiting post-termination victimisation;
• Fourthly, if post-termination victimisation were not prohibited, the UK would be in breach of its obligations under EU law; and
• Fifthly, no rational basis had been suggested for treating post-termination victimisation differently from post-termination discrimination and harassment.

In the Court's view, the Equality Act does prohibit post-termination victimisation and, in the light of the ET's findings, the case was remitted for the assessment of compensation.